The ‘Right to Disconnect’ for employees in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 has passed the House and is currently awaiting royal assent. Once this occurs, employers and employees will have six months to familiarise themselves with the Right to Disconnect before it is operational.
KEY TAKEAWAYS
- Employers cannot employ someone on a fixed term contract.
- The Right to Disconnect will form part of the Fair Work Act 2009 (Cth).
- Employees will have the right to refuse contact from employers when contacted outside their working hours.
- There will be exceptions to the Right to Disconnect, for example where contact outside the employee’s working hours is reasonable.
- Once in place, disputes regarding the Right to Disconnect may be made to the Fair Work Commission.
WHAT IS THE RIGHT TO DISCONNECT
The Right to Disconnect bill is designed to allow employees to set boundaries between their work and personal life and protect them from being unreasonably contacted outside their ordinary working hours. The introduction of the Right to Disconnect is also consistent with the wider trends in workplace safety over the last 12 months focusing on well-being, including the introduction of the positive duty to prevent sexual harassment at work and the amendments to work health and safety regulations to specifically address psychosocial risk.
For this reason, the new Right to Disconnect gives employees the right to refuse to monitor, read or respond to contact (or attempted contact) from their employer, where the contact is outside the employee’s working hours.
It also gives employees the right to refuse to monitor, read or respond to third parties (such as clients/customers) outside of working hours.
WHAT ARE THE EXCEPTIONS
The Right to Disconnect does not ban employers from contacting employees outside of their working hours altogether and will not extend to unreasonable refusal of contact. In considering whether contact is ‘reasonable’, the following will be taken into account:
- The reason for the contact (or attempted contact);
- How the contact (or attempted contact) is made;
- The level of disruption caused to the employee;
- The extent to which the employee is compensated to remain available to perform work or work additional hours outside the employee’s ordinary hours;
- The nature of the employee’s role and level of responsibility; and
- The employee’s personal circumstances, for example, family or carer responsibilities.
For example, an employer contacting an employee for reasons such as notifying them of shift changes, or important information relating to their employment will likely be considered reasonable.
The Right to Disconnect also will not apply to small businesses (being businesses with less than 15 employees).
Both employers and employees will have the right to commence action in the Fair Work Commission regarding the Right to Disconnect where there is a dispute, for example, an employee unreasonably refusing to be contacted outside their working hours or an employer unreasonably contacting an employee.
NECESSARY ACTION
The introduction of this new legislation is reminder for all employers to make sure that they have appropriate employment contracts and policies in procedures in place which provide context about what is expected of employees. It is also important that employers ensure appropriate training is provided to all persons in management / senior positions, so they are aware of the Right to Disconnect once it comes into effect.
To discuss how we can assist you with the new Right to Disconnect, including reviewing your current policies and procedures and providing training, please contact us on the details provided below.
